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BIA Issues Three Decisions on Recognition and Accreditation (2014)

On November 20th, the Board of Immigration Appeals issued three precedent decisions concerning agency recognition and staff accreditation. The first decision, Matter of United Farm Workers Foundation, 26 I&N Dec. 454 (BIA 2014) concerned an organization that applied for partial accreditation of a staff person who worked at five recognized office locations in California and Arizona. The organization submitted multiple applications. The Board determined that agency staff members who are accredited at one recognized location of an agency are authorized to practice at any other recognized location of the same agency. Organizations no longer need to file a separate application for accreditation at each recognized location where a staff person will be providing legal services. With this decision, the Board seeks to make it easier for recognized agencies with limited resources to respond to the needs of their community.

The Board’s rationale is that multiple accreditation applications are redundant and impractical, especially when the organization has already shown, through the approved recognition application, that it provides adequate supervision and resources for its representatives at each location. The Board also noted that it is difficult for organizations to manage multiple BIA renewal application deadlines at the different locations. Under this decision, the Board states that “recognized organizations will be in a much better position to adapt to seasonal and temporary needs, respond to staffing exigencies, and otherwise relocate personnel to maximize service delivery to their low-income and indigent clientele.”

The second decision, Matter of Ayuda, 26 I&N Dec. 449 (BIA 2014), addressed the issue of nominal fees. In this case, an organization applying for recognition submitted a fee schedule with fees ranging from a couple of dollars for simple services to over a thousand dollars for complex litigation. The organization is located in the Washington, DC metropolitan area. The Board approved the application and used the decision to update and clarify its interpretation of what constitutes nominal fees, and how it determines if a candidate for recognition charges nominal fees.

The Board stated in this decision that it makes the determination of nominal fees on a case-by-case basis, and this determination is entirely dependent on the circumstances of the organization seeking recognition. In determining whether an organization charges nominal fees, the Board considers geography, client demographics, availability of services, and local overhead costs for service providers. Other factors the Board will consider include the following: the type of clerical services offered; the type and scope of legal representation; the manner of delivery of legal services; the fees imposed, if any, for each service; the actual costs to provide the services in the applicant’s geographic area; and the organization’s policy for waiving fees, adjusting fees, and assessing fees.

According to the Board, “The fee structure must be true to the goal of providing competent low-cost legal services and may not be designed simply for the purpose of financially sustaining or serving the interests of the organization.” The Board clarifies that any increases in agency fees after receipt of recognition must still meet the nominal fee requirement.

The applicant in this case demonstrated that its fees for basic services are modest; that it adjusts its fees using the Federal poverty guidelines; that it has a fee waiver policy, which is explained in the application; and that it has substantial support from grants and is not dependent primarily on client fees.

What does this decision mean for organizations that are in the process of applying for BIA recognition? The Board states that in order to demonstrate that it charges nominal fees, an organization should submit its budget, its sources of financial support, and its fee schedule. This is not new. However, the Board goes on to say: “The applicant should also describe how it determines its charges for immigration legal services.” This is additional information that was not required in the past. Depending on the circumstances, the Board also will now expect applicants to submit “a sample retainer agreement, a written fee waiver and/or sliding scale policy, a sample client handout regarding fees and fee waivers, and clear statements of funding and financial support on appropriate letterhead.” The full decision can be read at: http://www.justice.gov/eoir/vll/intdec/vol26/3820.pdf.

CLINIC will ask the Board to update its Frequently Asked Questions, located at http://www.justice.gov/eoir/ra/RandAFAQsPrintableVersion.pdf, to further clarify the documentation requirements outlined in this decision. We will be monitoring our network’s BIA applications to determine how this decision is being implemented so we can advise our affiliates accordingly.

In the third decision, Matter of St. Frances Cabrini Immigration Law Center, 26 I&N Dec. 445 (BIA 2014), the Board addressed the situation where a candidate for agency recognition is physically co-located, financially associated with, or otherwise attached to a for-profit organization. The Board denied the application for recognition in this case, finding that the organization did not hold nonprofit status and did not provide convincing evidence of its independence from its for-profit affiliate. The organization applied under the nonprofit status of another organization of which it claimed to be a division and was in the process of obtaining separate 501(c)(3) status. The organization shares officers and directors with its for-profit affiliate.

The Board in this case expressed concerns about conflict of interest and the possibility that the organization seeking recognition might be unduly influenced by its for-profit affiliate. In such cases, “The organization must affirmatively demonstrate that its immigration services are not part of a larger commercial enterprise and do not act as a loss leader for for-profit services or serve in any other way as a façade or conduit for a business venture.” The full decision can be read at: http://www.justice.gov/eoir/vll/intdec/vol26/3819.pdf.

If you have any questions about these three, new decisions or the BIA application process in general, please reach out to your Field Support Coordinator. CLINIC will update its BIA Toolkit, as needed to reflect these new decisions.

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